Michael Smith | Legal Information Services Associates LLC

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BOP HEALTHCARE TAKES IT ON THE CHIN

The Bureau of Prisons’ healthcare system took some hits last week.

First, from the “Crime Pays – If The Victim is the BOP” department: NaphCare – a private company that boasts it offers “proactive, preventative medical and mental health care providing community-standard of care in jails and prisons” – demonstrated how to defraud the BOP without consequence. NaphCare overbilled the BOP by “submit[ing] inflated claims for evaluation and management services.” And, after stealing at least $690,000 from the BOP, not only are there no criminal prosecutions, but NaphCare’s contract continues without interruption. All it has to do is pay it back.

Try that one with the judge on your next fraud indictment.

The Dept. of Justice announced last week that it had settled a False Claims Act proceeding against NaphCare by agreeing that the company could pay back $694,000 without admitting that it had done anything wrong. The “anything wrong” was a scheme whereby its employee physicians occasionally did not indicate the type of service performed on an inmate when they completed onsite visit sheets. When that happened, a NaphCare employee would fill in a code for a more expensive medical service and bill the BOP accordingly.

The scam went something like this: the NaphCare doc treats Ira Inmate for an ingrown toenail but fails to code it on his report turned into the home office. A NaphCare staffer sees the blank, and inserts the code for “heart transplant.” NaphCare charges a bit more for heart transplants.

The government caught NaphCare pulling the grift at USP Terre Haute and USP Victorville. The settlement agreement suggests NaphCare did it elsewhere, too, and has to report other improperly-billed costs within 90 days. In other words, the $694,000 at two facilities may just be the tip of the iceberg.

As an old law partner of mine liked to say, “no thief steals only once.” Or twice, in this case.

So how do you run a billing scam on the nation’s chief law enforcer? Well, when the BOP’s healthcare system run by a former correctional officer without healthcare credentials, it is apparently not that hard. The Marshall Project reported Thursday that the senior official responsible for overseeing health care, safety, and food service in all of the BOP’s 122 facilities is Michael Smith. Mr. Smith (don’t call him “Dr.”) is a community college dropout who started his career as a CO in 1997. Smith directs three national program areas: medical, environmental and safety compliance/occupational health, and food service.

“I would seriously question his understanding of science, but he was a nice guy,” said Bill Axford, union president at FMC Rochester, where Smith previously worked as an associate warden, told The Marshall Project. Axford said when he once raised concerns with Smith that radon, an odorless radioactive gas that can cause lung cancer, could pose a danger to parts of the prison, Smith initially dismissed the potential threat, telling Axford that “radon’s not real.” Axford said that on another occasion, Smith told him that sunscreen, not the sun, caused skin cancer.

Union leaders, prison health care workers, and advocates for prisoners’ rights said it is troubling that the people leading the BOP Health Services Division during the COVID-19 crisis lacked medical licenses. Nearly 50,000 federal prisoners tested positive for COVID-19 as of last week, and at least 258 have died. The BOP came under fire last year from politicians and union leaders for pressuring guards to come to work sick, failing to follow its own pandemic plan, and buying knock-off N-95 masks. “They spent $3 million buying UV portals,” one official added. “They said these killed the coronavirus — but they weren’t FDA-approved.”

“This is why our agency is broken,” said Joe Rojas, a national union leader who works at FCC Coleman. “You have people who are unqualified and you have a medical pandemic, but the leadership has zero medical background.”

“A great many of the people who ever had COVID, they were never tested,” complained Dr. Homer Venters, a former chief medical officer of the New York City jail system who inspected health conditions in prisons around the country over the past year, some as a court-appointed expert. “In most prisons, it ran through these places like wildfire.”

One man housed at a low-security federal prison compared the BOP’s public data to what he was seeing inside. At least half of his unit fell ill, he said, but the Bureau’s data didn’t reflect that.

“For the first year of the COVID, they never tested anybody in my institution unless they had a fever,” an unidentified BOP prisoner told the Associated Press. “The easiest way to not have a positive at your institution is to not test anybody.”

In the pandemic’s early days, the AP said last week, testing within the BOP was limited, and staff members at some prisons were told there was no need to test inmates. The DOJ Inspector General found that, at some facilities, inmates who tested positive were left in their housing units for days without being isolated.

The concern is not just academic. The highly transmissible COVID-19 Delta variant is now in every state, and is set to cause another COVID-19 surge. The Atlantic last week said, “Vaccinated people are safer than ever despite the variants. But unvaccinated people are in more danger than ever because of the variants. Even though they’ll gain some protection from the immunity of others, they also tend to cluster socially and geographically, seeding outbreaks even within highly vaccinated communities.”

As of last Friday, 53.5% of inmates and 52.0% of staff were vaccinated. One BOP union official, who has not taken the vaccine yet, said, “I don’t trust the agency. I’m not putting my health and safety in the hands of the BOP.” As for the unvaccinated inmates, Dr. Venters told the district court hearing litigation over FCC Lompoc that many inmates who had refused the vaccine “reported that despite having questions about the vaccine and their own health issues, these questions were not addressed during the vaccine offer or afterward… The CDC has entire toolkits and guidance documents designed to increase vaccine update, but the basic foundation of these efforts is engaging with patients… Many of these high-risk patients were initially offered the vaccine 3 or 4 months ago, and the insistence by BOP leadership that their very valid and predictable questions and concerns go unaddressed during this time significantly increases the risk of preventable death from COVID-19.”